AUTHOR(s)

On January 23, 2014, the Supreme Court of Canada released two decisions that will make summary judgment more widely available to parties. The reasons in Hryniak v. Mauldin, 2014 SCC 7, and Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, signal a cultural shift in which summary judgment will be available whenever a summary judgment motion involves less time and expense than a trial, provided that the process enables the motion judge to reach a fair and just determination on the merits. In effect, the "full appreciation" test formulated by the Ontario Court of Appeal has been replaced with a sufficient appreciation test, which grants judges wide discretion to use dispositive fact-finding powers to grant summary judgment seemingly in all cases.

The ultimate question is whether there is a genuine issue requiring a trial. The Court held that a genuine issue requiring a trial does not exist if the motion process (1) allows the judge to make the necessary findings of fact; (2) allows the judge to apply the law to the facts; and (3) is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial. The new summary judgment test articulated by the Court asks the motion judge to consider that question in two steps.

Under the first step of the test, the judge must determine if there is a genuine issue requiring trial solely on the basis of the evidence before the court, without using the new powers granted in 2010 under Rules 20.04(2.1) and (2.2) (i.e., weighing evidence, evaluating credibility, drawing reasonable inferences or ordering oral evidence). There will be no genuine issue requiring a trial if the summary judgment process provides the judge with the evidence required to fairly and justly adjudicate the dispute in a timely, affordable and proportionate procedure. If it does, summary judgment should be granted. If the judge determines, on the basis of the record before the Court, that there appears to be a genuine issue requiring a trial, the judge must go to the second step of the test.

Under the second part of the test, the judge must determine whether the need for a trial can nevertheless be avoided by using the Rule 20.04(2.1) and (2.2) powers to resolve the matter on the motion. According to the Court, there is a presumption in favour of using these powers and the discretion to refrain from using them should be viewed as a "safety valve" that is primarily applicable in cases in which their use would be "clearly" inappropriate (e.g., where unmeritorious motions for summary judgment could be abused tactically to add time and expense). The judge’s decision to use these powers is a discretionary one, based on whether it would be against the interest of justice to do so. In somewhat circular reasoning, the Court held that the use of the powers would not be against the interest of justice if it would lead to a fair and just result and would serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole when assessed in relation to a full trial.

Notably, however, the Court did not provide any guidance for determining what constitutes a fair and just result at either step in the test. Therefore, there is uncertainty about how this analysis will be applied by judges.

Importantly, as part of its new framework, the Court held that parties should bring motions for directions in cases involving complex or voluminous records, in order to streamline the motions process prior to the summary judgment hearing itself. The failure to do so may be a basis for awarding costs under Rule 20.06(a). Additionally, in cases in which a summary judgment motion is unsuccessful, the Court held that judges may make liberal use of the trial management powers in Rule 20.05(2) to craft a responsive and contextual trial process. In this respect, the Court stated that a judge who dismisses a summary judgment motion should generally remain seized of the matter as the trial judge.

Finally – and significantly in view of the amount of discretion accorded to motion judges under the new framework – the Court held that a judge’s determination of whether there is a genuine issue requiring a trial or whether the new fact-finding powers should be used on summary judgment will attract considerable deference on appeal absent an extricable legal error or clear case of injustice. Accordingly, to return to an old summary judgment adage, parties would be well-advised to "put their best foot forward" in responding to a motion. In light of the clear policy shift towards summary judgment taken by the Supreme Court, it will be considerably more difficult to contest such motions from now on.